Judge to cyclist: ride in the gutter pan

[update sometime in 2012(? in any event, well after this ticket and trial) the deputy who wrote this citation was relieved of duty with the CCSO, he apparently had some truthfullness and other job-performance issues]

A Flagstaff cyclist was ticketed for violating ARS 28-704A by a YavapiCoconino County Sheriff’s deputy. The deputy was apparently upset that a cyclist was impeding traffic, that is blocking a lane — seeing as how there was a perfectly good bike lane available.

Through the wonders of the internet, we can see (the exhibits) and hear the whole trial.[link now dead] (the audio files were in .ogg format; somehow when i clicked on them, they magically played!)

That bike lane was, however, marked as being “closed” (at least in one direction) and was undergoing construction, with its surface abraded in both directions. The judge, incredibly, suggested that the cyclist should have been riding in the gutter pan, since that was “smooth” — the deputy quickly agreed that this would be great. When questioned about where to ride, the deputy replied “if you’re asking me the way I would ride a bicycle… I would NEVER ride in the lane. Myself, when I ride a bicycle, if there’s 3 INCHES on the right side of the road outside the lane, that’s where I ride my bicycle”.

The deputy’s testimony dripped of the usual false or misguided paternalism; that it’s “too dangerous” to impede traffic, and so forth. This is demonstrably not true, particularly in the circumstances then existing; that is: daylight, urban, low speed roadways. The deputy should have been (monday morning quarterback here; and I doubt it would have impacted the outcome) directly challenged on this testimony.

I’ve written before in Bicycles are not motor vehicles, and why it matters how 28-704A does not apply to bicycles. The judge summarily dismissed this argument; she quoted from 28-812, and quickly concluded that the statute does apply to bicyclists. Thus finding the cyclist responsible for the violation. (she also again brought up the bizarre notion that the defendant could have been riding the gutter pan).

The trial was heard in Flagstaff Justice Court, before the Honorable Cathleen Brown Nichols, Justice of the Peace Pro Tempore.

The cyclist has prepared a stunningly detailed appeal. I wish him good luck with it. All cyclists should be very concerned with the outcome.

Story published in The Noise, City Shenanigans Leave Bicyclists with No Options (no longer online, but reproduced in a comment below), covering both the this citation a seperate Bus incident involving another cyclist.

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9 thoughts on “Judge to cyclist: ride in the gutter pan”

This is troubling because A.R.S. 28-704(A) does not apply to cyclists.

A.R.S. 28-812 is an enabling statute that makes “driver of vehicle” statutes applicable to cyclists. There is another set of statutes referred to as “operators of motor vehicles” that do not apply to cyclists.

A.R.S. 28-101 makes a distinction between the definition of “driver” and “operator.” Also, a distinction in the definition of “vehicle” and “motor vehicle.”

“Operator of Motor Vehicle” statutes talk about licences and taxes and tonnage and equipment and take into account an engine that can quickly accelerate (such as 704(A)).

“Driver of Vehicle” statutes talk about all roadway rules of behavior such as stopping, turning, speed control, etc.

28-704(c) applies to cyclists through 28-812 because (c) is a driver of a vehicle statute.

28-815(A) as we know, has exceptions for debris, pedal strikes three inches from the curb and narrow lanes.

28-704(C) does not require a cyclist to move to the right, it requires the cyclist to absolutely vacate the roadway when 5 or more vehicles are behind and then ONLY when safe to do so.

We have a policy letter from the Pima County Sheriff supporting the above and it was approved by the Pima County Attorney’s Office.

I hope we don’t end up with an appeal situation from bad lawyering.

Of course, the officer is dead wrong by suggesting that inviting a bad pass is safer than taking the lane. If the officer is not qualified to competently ride in traffic and command the lane/roadway lawfully, then it would be important to get someone in there who can.

There is an appeal case in Pima County now that says a rider can take the lane in a narrow roadway (just like the statute says).

“The rules also provide a means to request that the Superior Court reconsider its ruling. To do so, you must file a ‘Motion for Rehearing’ in the Superior Court within fourteen (14)calendar days of the date you receive the decision or order. You must include a Memorandum that specifically explains why you believe the court misapplied the law or facts. You should not merely restate the same argument you made in your original Memorandum.”
from: Representing yourself: appealing a civil traffic case…

It is often said that Flagstaff is a bicycle friendly city. I’m not sure what criteria is
involved in labeling a city as friendly to bicyclists; perhaps it is any city that has nice
weather and a centralized population. Maybe it has something to do with a percentage of
city funds that go toward bicycle infrastructure or the number of cyclists on the road. In
light of a few recent bicycle-related fiascos, however, one thing is clear, if Flagstaff is a
bicycle friendly city, it is not because there is widespread acceptance and respect for
bicycle laws. In fact, the only people that seem to have any consistent knowledge of the
Arizona bicycle laws are the bicyclists themselves.

“I’m not a lawyer or anything, but to me, the bicycle laws are pretty easy to
understand,” said Randy Mason, an avid Flag cyclist and part of the new eagerly
awaited bike shop, Revolution. Mason was recently involved in an incident involving
one of Flagstaff’s many Mountain Line buses. As Flagstaff cyclists know, the bike lane
has been mostly, partially, or completely blocked by snow since our fantastic storms a
few weeks ago. Randy was riding his bike down Butler Avenue, as safely as he knew
how, cruising in as much of the bike lane that was available. He claims to have been
passed by a bus that sped by him dangerously too close.

Everyone reacts differently to having his or her life threatened on the road. Some of us
cuss, spit, or throw up the finger; others can’t wait to tell their bicycle friends about it.
Then there are some who do what motorists least suspect: we chase the dangerous driver
down. Randy Mason is one of those people.

In the state of Arizona and in most other states, it is illegal to come within three feet of a
cyclist going in the same direction. It is probably one of the most common bicycle laws
in the country because it is tied to an obvious and universal sense of morality. Sometimes
motorists and cyclists do not see eye-to-eye, but I hope it is safe to say that nobody wants
to kill each other. A three-foot bumper is the minimum amount of space determined to
ensure there is not a collision.

“If you hit a cyclist who is in the bike lane, it will always be your fault,” said Mason.
By giving cyclists three feet, motorists don’t have to gamble with someone’s life.
According to the Arizona Department of Transportation (ADOT), larger vehicles are in
fact required to provide a 5-foot buffer when overtaking cyclists, and recommend
anywhere up to 12 feet.

Mason boarded the bus and informed the bus driver that by law, he is entitled to three
feet. The driver argued with him, claiming that Mason is not entitled to any amount of
room while he is in the bike lane and that he is not permitted to ride in the vehicle lane
under any circumstances. Even though Mason technically stayed in the bike lane because
he was trying to ride as close to the right as possible, Arizona law clearly states that if the
bike lane is blocked or is unsafe, the cyclist may temporarily ride in the traffic lane.
Deciding whether or not to take the full lane is at the cyclist’s discretion. And who better
to judge the safety of the bike lane than those riding on it?

The driver informed Mason that he had hit his “emergency” button and his supervisors
and police officers should arrive soon. According to the police report, the officer
responded to a report of “a possible fight in progress.” The driver also told police that
Mason was being “confrontational” and he thought he was about to be “physically
assaulted” by Mason. Fortunately we live in a world where everybody is recording
everybody else. Mountain Line buses have between 6 and 8 cameras, which Mason later
gained access to. He also recorded the whole incident on his cell phone and later put
together a short youtube video.

“This whole thing made me feel better about having an iPhone…I think people’s ability
to record and document situations like this will drastically change how things are done,
especially by law enforcement.”

The footage shows a calm and collected Mason keeping his distance and his cool, as he
talked to the driver. The driver also claimed that he couldn’t change lanes to go around
Mason because there was a car in the lane next to him. However, one of the side camera
angles clearly shows that the lane was completely free of traffic. The video also shows
that the bus driver was speeding.

When the police showed up, Mason told him what happened, expecting the officer to
know the bicycle laws better than the bus driver. But the officer chose to stuck up for the
bus driver with his lack of knowledge of the bicycle laws. “I don’t know where you’re
getting that you get three feet,” the officer said.

After Mason and the bus driver were permitted to go their separate ways, the city
attorney had “determined the 3-foot rule doesn’t apply because Mason was in the bicycle
lane and not in the lane in which the bus was traveling,” reported the Arizona Daily Sun
after the incident.

“Not requiring a vehicle to observe the 3-foot law while a cyclist is in the bike lane, but
requiring a vehicle to observe the law when the cyclist is in the same lane of travel as the
vehicle doesn’t make sense,” said Erik Ryberg, a Tucson lawyer that specializes in
bicycle related cases. “What that would mean is that a bike lane provides less protection
to a cyclist than a cyclist who decides to disregard the bike lane,” Ryberg said.

Rewind to last July. Flagstaff will remember that much construction took place on
Butler and on Lone Tree. The shoulders of the road were abraded during the construction
and cyclists will remember that riding on this abraded pavement was nearly impossible.
Therefore the bike lane was closed with clearly posted signs. Flagstaff resident Justin
Pryzby was cited by a Deputy Sheriff for “impeding traffic,” when he was forced into the
street because there was no bike lane. Pryzby is currently appealing the citation as the
Sheriff chose to ignore the fact that not only was the bike lane unsafe, but it was closed.
And according to Arizona law, these are the conditions upon which a cyclist may legally
ride in traffic.

The judge suggested that Pryzby ride in the concrete space connected to the curb,
commonly referred to as the “gutter pan.” Pryzby has repealed the decision. “It’s indeed
disappointing that in both cases the police demonstrated ignorance and abrasiveness.”

Between these two cases, the city has created an impossible situation for cyclists. When
it is not possible to safely operate a bike closer to the edge of the road, according to the
city attorney’s interpretation of the law, motorists can come within inches. When cyclists
take the lane in order to get a three-foot buffer, they’re cited with impeding traffic.

The plot still thickens. When Mason called the city attorney to ask her about this
dangerous interpretation of the law, she said that was not her interpretation and despite
the police calling and informing Mason and the subsequent article published in the Daily
Sun, she had not yet gone over the case and made any decisions.

“When I received a call from the police, they had not spoken with the city attorney, but
they were obviously trying to cover their ass,” said Mason. “They must have thought all
this would just go away.”

Mason said he didn’t want anyone fired over the incident, and he doesn’t care about an
apology either. “I just want everyone to know the laws.”